Can the First Amendment Protect Us from the Ruling Class?

By | 2017-06-02T18:30:05+00:00 January 23, 2018|
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Congress shall make no law” restricting the free exercise of religion, freedom of speech, or of association. Aside from Christ’s distinction between duties to God and duties to Caesar, the First Amendment’s words are some of the greatest barriers ever erected against tyranny. But James Madison, who wrote them, warned how easily the ever-present temptation to tyrannize overcomes “parchment barriers.”

Until recently, the First Amendment was our Constitution’s least questioned, most treasured part. Today, growing calls for joining the rest of the world in criminalizing speech offensive to society’s most powerful groups remain anathema to most Americans. As the federal government applied the Bill of Rights to the states, the First Amendment was the first that it imposed upon them, in a 1925 Supreme Court decision called Gitlow v. New York.  No one exercising government power at any level, no “state actor” may deprive anyone of his First Amendment rights. That’s how it works in theory, anyhow.

Nevertheless, most Americans sense that freedom to engage publicly in religious activity, to express ourselves, to choose with whom to associate (or not), is declining perhaps irreversibly. States, for example, have created “human rights commissions” that penalize businesses for refusing to take part in celebrating homosexuality. Public school employees are fired for praying on school grounds, and even children are punished for doing so. All know that certain opinions or attitudes, even casual remarks, deemed “offensive” by powerful persons preclude, derail, or end careers.

This re-prioritization naturally led to a re-defining of the First Amendment’s objective as ridding America of “discrimination” by private individuals. No one should be surprised that this change of focus, which initially led the courts to disallow laws permitting discrimination by private individuals against what came to be known as “protected classes,” ended in Justice Kennedy, writing for the Supreme Court’s majority, damning and well-nigh criminalizing the very motivations of such discrimination. How easily did “Congress shall make no law” become “Congress really must make a law…” !

And indeed Congress came close to making just such a law when on September 11, 2017 it passed a Joint Resolution, which President Trump signed under pressure, that none too subtly accused citizens on the  American right of being party to “hate groups” and asked federal, state, and local agencies to “improve the reporting of hate crimes, and to emphasize the importance of the collection, and the reporting to the Federal Bureau of Investigation, of hate crime data.”

This is an intellectual and moral problem of the highest order for the people at the fountainhead of American law. It is a political problem, too, because the American people are already in a state of semi-revolt, and the courts know that they have been using up their legitimacy.

The problem within law and government, however, merely reflects the state of the larger ruling class of which the courts, Congress, and administrative apparati are part. Keep in mind the distinction between any government and the regime—what Aristotle called the “complex of offices and honors” of which government is the expression. In fact, by far the greater part of the restrictions on freedom of speech that we experience come from outside formal government—from academe and corporate America. No one disputes the effective existence of speech codes there. Just beyond the First Amendment’s reach not only does the ruling class penalize expressions at variance with its catechisms;  people now feel pressed publicly to confess adherence to their tenets, or else.

This is a problem about the nature of our regime. The rise of our current ruling class has made a revolution. Resolving it, were it possible, would require equally revolutionary changes at the top of society. Americans on the Right would have to cease patronizing institutions unfriendly to them, thus leading them to change. More likely, it would have to set up alternative institutions. The decrease in the NFL’s viewership subsequent to its disrespect for the national anthem is a very small token of what might happen.

A much bigger problem of the same kind demands more significant action. Facebook and Twitter have become the overwhelming medium of communication among Americans, especially the younger generations, and have instituted algorithms that allow for the suppression of  opinions with which their highly opinionated management disagrees.

The social media giant’s first defense—we’re not “shadowbanning”—are actually admissions. Twitter’s argument: “We do take actions to downrank accounts that are abusive, and mark them accordingly so people can still to click through and see this information if they so choose… This makes content less visible on Twitter, in search results, replies, and on timelines. Limiting tweet visibility depends on a number of signals about the nature of the interaction and the quality of the content,” That’s as good a definition of “shadowbanning” as one might want. Banning what? Objectionable to whom? A glance at Google’s corporate prejudices suffices to describe what the U.S. corporate mind tolerates and does not.

But social media and other corporations are private, not “state actors,” right? Yes. But they trammel our First Amendment rights nevertheless, even more than “state actors” do. What then is to be done about that?

The answer is clear enough, especially with regard to companies involved in communications: Pass a law that makes them “public utilities” for the purposes of the First Amendment. Such a law, unlike the FCC’s late, unmourned “Fairness Doctrine,” would not require the companies to do anything, nor to define “fairness or anything else,” nor balance anything. It would simply prohibit any company that offers itself to the general public from discriminating against any part thereof in any of their operations. The alternative would be to break up Google, Facebook, Twitter, Comcast, etc., as “Ma Bell” was broken up 35 years ago.

Communications companies cannot have their private freedom to discriminate against those they do not like—a freedom which everyone should have—with the power that they have acquired over who says what to whom.

The class that rules and currently defines our regime long ago despised the First Amendment. Whether we may rescue aspects of it for our protection remains to be seen.

About the Author:

Angelo Codevilla
Angelo M. Codevilla is a senior fellow of the Claremont Institute, professor emeritus of international relations at Boston University and the author of To Make And Keep Peace, Hoover Institution Press, 2014
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48 Comments

  1. John Q Public January 23, 2018 at 10:46 am

    You don’t need a new law. The “company town” precedents about what is or is not a public square are sufficient. Marsh v. Alabama, 326 U.S. 501. You just need Jeff Sessions to do something!!!

  2. Frank Natoli January 23, 2018 at 11:00 am

    But social media and other corporations are private, not “state actors,” right?
    So was the Greensboro Woolworth’s lunch counter. “Private” is not über alles.
    Until recently, the First Amendment was our Constitution’s least questioned, most treasured part.
    Not my America. Try putting up a Christmas creche at Grand Army Plaza in Brooklyn. ACLU sues; creche removed. But the menorah stays, because there was no complaint filed about that. This goes back decades.

  3. jtns January 23, 2018 at 11:18 am

    i dont know about the first amendment protecting us from the ruling class, but the second sure can. our founding fathers were sure of it enough to give us the only constitution in the world that enshrines our natural right to keep and bear arms.

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    • Patrick Turner January 25, 2018 at 1:58 pm

      When though? I’m tired of hearing talk about second amendment solutions when no one really knows what that means. Who are the targets and why? How much more can people on the right take of this garbage?

      Bigger question, how do we gain legitimacy for the insurrection when a majority of the body politic hates most of us and doesn’t care if our rights are violated because we are “old news” or “on the wrong side of history”

      Leftists know how to violate rights without using violence on an individual basis. That gives them legitimacy an armed insurrection wouldn’t have.

  4. Joel Mathis January 23, 2018 at 11:24 am

    Welp. This is Orwellian. The first paragraph opens with “Congress shall make no law.” The conclusion urges the making of a law. And that’s fine. This is pretty close to the rationale for tightening the screws on campaign finance, which I’ve understood the proprietors of this site to oppose. I guess it’s all about whose ox is being gored.

    It’s interesting. I wonder what Mr. Codevilla thinks about the repeated calls on the AmGreatness website to tighten libel laws so the president can crack down on “unfair” criticism he has received in the mainstream media, perhaps through a defamation suit? Is the president part of the “ruling class?”

    • Frank Natoli January 23, 2018 at 12:19 pm

      Throughout the rest of the world, libel does not distinguish between public and private figures. Libel is libel.
      You, I’m going to guess, approve of present U.S. libel laws, which make suits by public figures impossible, since they must prove what the perp was thinking?

      • Joel Mathis January 23, 2018 at 12:22 pm

        I approve of present U.S. libel laws because public figures are fair game for criticism – and in places where libel law protections for the press, the “ruling class” can stifle criticism with an expensive lawsuit or two, where or not there’s real merit. Leave well enough alone.

        • Frank Natoli January 23, 2018 at 4:14 pm

          Present U.S. libel laws require the plaintiff to not only prove that the defendant published false information, but that the defendant KNEW the information was false. Do I understand you correctly that as long as a publisher carefully omits any e-mails stating “I know this is total bullshit, but I’m publishing it anyway”, that publisher should be protected from any libel suit?

          • Joel Mathis January 23, 2018 at 4:18 pm

            Your question suggests a court should presume malice instead of forcing a plaintiff to prove it.

            So yes: I think publishers should win suits in which the elements of libel are not proven.

          • Joel Mathis January 23, 2018 at 4:24 pm

            I should add:

            “Present U.S. libel laws require the plaintiff to not only prove that the defendant published false information, but that the defendant KNEW the information was false.”

            That’s the standard that applies to public figures, such as the president, members of congress, Hollywood actors and so forth. If a media organization libels or defames a person who was, prior to the publicity, a private citizen, that citizen only needs to prove the media organization acted negligently.

            An explainer: https://www.superpages.com/em/libel-lawsuits/

            I think that’s a fair distinction. We lower the bar for public officials like the president because we don’t want to inhibit the free exchange of ideas about the president.

            On the other hand, that “actual malice” standard exists: If newspapers are continually publishing false items and doing so knowingly and intentionally, the president could bring a lawsuit and maybe even be successful. The fact that he has not done so, given his litigious track record, is indicative of what he thinks of the legal merits of his constant slams against the press.

        • hamburgertoday2017 January 23, 2018 at 4:38 pm

          The issue is not the ‘public’ nature of the figure, its whether private institutions who are making use of a public resource are exempt from the public will (via the law). The First Amendment guarantees ‘freedom of the press’ but such ‘freedom’ has never been accepted as a license to misuse the underlying resource of ‘the commons’ which is really more at issue. Since the ‘press’ can create a ‘public’ figure simply by placing their name in a story for public consumption the notion of ‘fair game’ on ‘public’ figures is, essentially, a ‘license to defame’. That a news agency such as CNN would threaten someone with public exposure should be enough to tell us that ‘freedom of the press’ has turned oppressive of ‘free speech’. It’s a problem that needs to be addressed and using the current law to simply define Twitter, et al as ‘public utilities’ allows existing case law to guide the regulation of such entities.

          • Joel Mathis January 23, 2018 at 4:44 pm

            Why should private institutions be subject to the public will? That seems like the most un-conservative statement I’ve seen at this website. Maybe I’m presuming too much to believe you’re conservative.

            “Since the ‘press’ can create a ‘public’ figure simply by placing their name in a story for public consumption the notion of ‘fair game’ on ‘public’ figures is, essentially, a ‘license to defame’.”

            This is, as a matter of law, strictly untrue. Here’s the wiki explainer: https://en.wikipedia.org/wiki/Public_figure

            I can’t decide to start reporting on a random John Doe who has never been the topic of reporting before and turn him into a “public figure” without a compelling news reason. The law, as far as I know, has never been applied in the fashion you suggest.

          • hamburgertoday2017 January 23, 2018 at 6:10 pm

            The Wikipedia article you provided suggested that I could be right in the form of ‘involuntary public figure’.

            I don’t know where you get the idea that the press cannot ‘start reporting on some random John Doe…without a compelling news reason’. To what law would an ‘involuntary public figure’ appeal to stop the process, especially before their life was upended?

            As for whether private institutions should be subject to the ‘public will’ not being a ‘conservative’ position, so-called ‘social conservatives’ would disagree. However, I can understand how you might reach the conclusion that there is nothing ‘conservative’ about the exercise of the public will on private institutions. Many people assume that economic libertarianism is a ‘conservative’ position, including people who would self-designate as ‘conservative’. However, most contemporary ‘libertarians’ (Ayn Rand, Milton Friedman) are really just anarchists with good branding.

          • Joel Mathis January 23, 2018 at 6:13 pm

            “To what law would an ‘involuntary public figure’ appeal to stop the process, especially before their life was upended?”

            The fact you have to phrase it in hypothetical terms suggests, again, the law has never been interpreted according to your theory.

          • hamburgertoday2017 January 23, 2018 at 6:23 pm

            What about the CNN dox threat? Does that count?

          • Joel Mathis January 23, 2018 at 6:27 pm

            That never went to court, as far as I know. The law never got involved in an official way. So: No.

            It’d be interesting to see how a court ruled if the doxee did decide to pursue action.

          • hamburgertoday2017 January 23, 2018 at 10:14 pm

            No, it did not go to court but it also not a hypothetical or academic issue (such as you suggested). But to what legal protections could the target of CNN’s dox threat have appealed? A private individual is targeted by a media corporation for humiliation and embarrassment because they didn’t like something the individual posted. CNN hides behind ‘freedom of the press’ in order to use its access to the public airwaves to suppress free speech. I see that as a problem.

          • kentramsay January 23, 2018 at 9:04 pm

            Why should a baker be forced against his will to bake a cake?

        • Bob January 28, 2018 at 6:14 pm

          No person ought to be “fair game” for another person’s deliberate attempts at character assassination through slander, defamation and clearly scurilous lies. Public figures are persons. If one person attempts to falsely accuse another human being he or she should pay for it. One of the ten commandments covers this.

          • Joel Mathis January 28, 2018 at 6:17 pm

            “deliberate attempts at character assassination through slander, defamation and clearly scurilous lies.”

            Are covered by current law. If the president really believed he’d be purposely slandered,defamed, or libeled, he could sue under the current law – no need to make massive changes.

            I think there’s a reason he doesn’t do that.

      • Joel Mathis January 23, 2018 at 1:57 pm

        It’s worth mentioning, too, that present laws don’t make lawsuits impossible: See Hulk Hogan, Peter Thiel, and Gawker.

        • Frank Natoli January 23, 2018 at 4:12 pm

          https://www.forbes.com/sites/robertwood/2016/03/19/hulk-hogan-wins-115-sex-tape-verdict-against-gawker-irs-wins-too/#2f188698adcc
          Hogan sued for invasion of privacy not libel.
          Kindly provide evidence of Peter Thiel libel suit.
          And Gawker was the defendant in the Hogan case. Invasion of privacy not libel.

          • Joel Mathis January 23, 2018 at 4:27 pm

            Fair point, but the case rested a great deal on the issue of whether the sex tape constituted “news,” and that relied in part on accepting that Hogan was a public figure. Despite the fact that he was a public figure, the judge decided Gawker went too far.

            Peter Thiel funded Hogan’s lawsuit, btw.

    • ADM64 January 23, 2018 at 1:44 pm

      You’re on target with the first paragraph, but not the second. Libel is a recognizable harm, as is slander. There is nothing inherently problematic about tightening the libel laws, provided the standard remains the knowing presentation of false claims that do material harm to someone via speech or print etc.

      Those on the left, whom often urge us to copy other jurisdictions, might want to consider revisiting the principle that the loser in a lawsuit pays the winner’s costs. That would have a salutary effect on the entire legal system.

      • Joel Mathis January 23, 2018 at 1:55 pm

        “provided the standard remains the knowing presentation of false claims that do material harm to someone via speech or print etc.”

        I’m a little confused. If you don’t want to change that standard — for public figures, like Trump, you need to demonstrate what’s called “actual malice” underlying the error — how do you propose to tighten the laws?

  5. ADM64 January 23, 2018 at 1:41 pm

    Half agree with this. Blurring the distinction between public and private began with public accommodation laws and is largely the source of the problem. Google et al can discriminate as they want; there are in fact other means of communications and since we on the right are a non-trivial part of the population, it should be possible to create alternatives. However, like many conservatives’ approach to cultural issues, we don’t want to do the heavy lifting. Have the Kochs provide the capital. It will do more than some of the think-tank advocacy. However, a remedy exists within the law: class action lawsuits for fraud. When Google advertises as being open to all, and touts its search engine as objectively impartial and the best, and when Twitter advocates that it provides a free platform for all and then shadowbans, both companies are taking money on false pretenses and are committing fraud. Sue them on that basis. Again, and again, and again,

    Meanwhile, those on the right need to point out that our opponents are not misguided, or don’t appreciate what they are doing, but are in fact WRONG. Wrong in the moral sense. Wrong in the sense that 2+2=5 is wrong. The legitimacy of their arguments, which are demonstrably false, self-contradictory gibbership, must be entirely repudiated.

    The moral cowardice of most business is long and well-documented. Enforcing a regime that lets us decide when business should be made into public property simply plays into the left’s hands by giving that power to government and legitimizing the very principle at the opposite of the First Amendment. What if the government then decides that these “public communications” entities must broadcast messages in proportion to popular support?

  6. Ethan Young January 23, 2018 at 11:52 pm

    Half agree with this. Blurring the distinction between public and private began with public accommodation laws and is largely the source of the problem. Google et al can discriminate as they want; there are in fact other means of communications and since we on the right are a non-trivial part of the population, it should be possible to create alternatives

  7. SmartProf January 24, 2018 at 5:26 am

    Slightly different suggestion:
    Make the media companies adhere to “diversity” rules for conservatives–i.e., apply the same quota rules to them that exist for Blacks, etc.
    Force these 99% Democrat media giants to hire some Republicans, and their corporate culture will change in a hurry.

    • SmartProf January 24, 2018 at 5:28 am

      BTW I don’t like quota laws. But as long as the DC GOP allows them to exist, make them apply equally in our favor as well as the favor of others.

  8. William Westchester January 24, 2018 at 7:08 am

    When any Conservative’s disagreement with the Progressoviks is considered “shouting ‘fire’ in a crowded theater”, we have a barrier to overcome.

  9. FedUpWithWelfareStates January 24, 2018 at 8:27 am

    Why does the so-called ‘Ruling Class’ act so arrogantly towards the working class?

    Because they can!

    Only recently, have WE Deploreables awakened to the point where we are fighting back, & winning so far, but how many decades did that take?

    How many corrupt & abusive administrations did that take?

    Keep in mind that OUR ‘Representative Republic’ is operating on a fine line between what OUR forefathers originally intended for US to be, & becoming a ‘Borderless American Union’ that the Globalist want us to turn into…

    Where will the next election take us? If the DhimmiRats get back into power, will they continue with Obama’s 16 year plan to get us involved in a WWIII, eventually destroying America, killing off millions, all the while enriching themselves…

  10. Stick January 24, 2018 at 9:03 am

    Google is the scariest of all since it controls what is true and is a monopoly.

  11. Glenn Gallup January 24, 2018 at 9:20 am

    The Constitution and the Bill of Rights can’t prorect you from anything. They are rules on paper. What can protect you are people like my ancestors who, after the founding fathers wrote those glowing words, took their muskets and made the words stick.

  12. JohnnyClams January 24, 2018 at 9:25 am

    Absolutely correct. Satan, er, I mean Google, must be regulated as a public utility when it comes to freedom of expression.

  13. crushlimbraw January 24, 2018 at 11:22 am

    As usual – AMC makes it explicitly clear – “Communications companies cannot have their private freedom to discriminate against those they do not like—a freedom which everyone should have—with the power that they have acquired over who says what to whom.”
    Thank you, sir – sending to my list and keeping in my archive for reference.

  14. charlesrwilliams January 24, 2018 at 11:46 am

    On what principle do we protect bakers who don’t want to make custom wedding cakes for same sex “marriages” and not protect Google from discriminating against ideas it dislikes.

    • Bob January 28, 2018 at 6:03 pm

      Bakers aren’t public utilities

  15. Vizzini January 24, 2018 at 2:50 pm

    How do you meaningfully break up, say, Twitter or Facebook anyway? They’re each unified platforms. If people on Twitter-California are on a separate database than people on Twitter-NewYork, then the platform becomes useless. If the databases and message systems all continue to interoperate, then the degree of technical collaboration required renders any “breakup” a toothless fiction.

    • RCPreader January 25, 2018 at 10:12 am

      You can’t break up the individual platforms. Some companies, however — Facebook, Google, etc. — own and control multiple platforms/technologies, and you could break up the ownership of the different units.

      • Vizzini January 25, 2018 at 1:17 pm

        Doesn’t seem like that would really solve the problems that people are worried about.

        • RCPreader January 25, 2018 at 2:11 pm

          I was really just responding to your remark about breakup being physically impossible.

          But, while it’s not a fix in itself, it could potentially help. Currently, Google can exhibit bias/censorship through its search engine, and can exhibit the same bias/censorship via YouTube and searches there. Likewise Facebook can exhibit the same bias/censorship through the various different social media platforms it owns. If the new owners of all of these units were firmly of the same mindset, it wouldn’t change anything. But if they weren’t, some would see market opportunities for being unbiased.

          As I indicated elsewhere, the real fix is for people to not use these platforms and to create or migrate to alternatives.

  16. Tom January 24, 2018 at 6:27 pm

    “Can the First Amendment Protect Us from the Ruling Class?” Not without the Second Amendment – liberally applied.

  17. RCPreader January 25, 2018 at 10:24 am

    “Facebook and Twitter have become the overwhelming medium of communication among Americans, especially the younger generations,”

    No they’re not. They have gained prominence for particular types of communications, but they are NOT “the overwhelming medium of communication,” including among younger people (for whom Facebook is no more popular than among older people, while Twitter is only used by a small share of Americans of any age.)

    Quite frankly, I’m more concerned about censorship/bias by Google via both its search engine and YouTube, than by anything Facebook or Twitter do.

    But while some anti-monopolistic breakups may be appropriate (both Google and Facebook control too many influential platforms/technologies), the primary response should be to AVOID USING these platforms and to establish/migrate to new/competing platforms. That is, the market will solve this IF people feel strongly enough and are willing to act on what they believe.

    • Kenny A January 25, 2018 at 1:39 pm

      I suspect that when Codevilla refers to the “younger generations”, he’s referring to people in their 50s.

  18. jaimelmanzano January 26, 2018 at 6:33 pm

    The habit of aspiring for democracy, and by association the “first amendment” clashes, I believe, with the observation by Ferguson over the workings of “the tower and the square.” If the force of law is used, and amplified, in pursuing democracy, and the first amendment, what may be forced is mob rule, and political correctness. Alternatively, if the cultural values, and behavior largely manifested in “common law” practiced in neighborhoods, and communities for themselves, without needing to seek the authoritative intercession of governmental power, workable solutions to problems evolve as “networks” rather than “towers” responding to commands from empowered “elites.” What successful societies seem to use are experiments and solutions within small(er) human organizations, that can, and are, adopted to coalescing/neighboring units exhibiting tolerance, agreement, open minds, and individual freedoms. The mechanical allegiance to “majority” decisions is more a tool, than essential to better human organizations.

  19. Bob January 28, 2018 at 5:59 pm

    “Breakdowns come and breakdowns go,
    what are you going to do about it
    that’s what I’d like to know….”

    What can the ordinary person do about this?

  20. Earl Tower January 28, 2018 at 10:08 pm

    A strong Constitution helps, but we have to defend it and push politicians to restore it to its full power.

Comments are closed.